Restons / Capquest Shop Direct Claim

[sytra]

This is the original defence, however, I think that now we have "some" information we should be allowed to amend it in places.


Capquest Investments Limited -v- XXXXXXXXXX
Claim No: XXXXXXXX

1: I received the claim XXXXXXX from the Northampton County Court on 16^th January 2017.

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3: This claim appears to be for a Catalogue Account agreement (Running Credit) regulated under the Consumer Credit Act 1974.

4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

5: The particulars of claim fail to state when the agreement was entered into.

6: The Claimants statement of case states that the account was assigned from the original creditor to Capquest Investments Ltd on 21st December 2012. The Defendant does not recall receiving notice of this assignment.

7: It is denied that Shop Direct served a compliant Default Notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

8: On the 24^th November 2016 and the 7^th December 2016 prior to this claim being issued, I sent a letter to Restons Solicitors in accordance of s3 of the Pre Action conduct requesting documents to try and avoid this claim being issued.

9: On 19^th December 2016 Restons Solicitors wrote back refusing to comply with paragraph 6(c) of the Pre Action Protocol.

10: On the 17^th January 2017 and again on the 27^th January 2017 I sent a request for inspection of documents mentioned in the Claimants statement of case under Civil Procedure Rule 31.14 to Restons Solicitors.

11: Restons Solicitors replied refusing to comply with my request under CPR 31.14 and to date Restons Solicitors have failed to respond to my second request.

12: On 3^rd June 2013 I sent a formal request for a copy of the original agreement to Capquest Investments Ltd pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

13: Capquest Investments Ltd failed to comply with my request.

14: On 25^th June 2013 I sent a letter informing Capquest Investments Ltd of the failure to comply with my s78 request.

15: To date the Claimant has still failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

16: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but by their refusal to reply they are taken to have declined.

17: Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

18: The Claimants solicitors repeated refusal to supply the requested documents and apparent disregard of the Civil Procedure Rules has left the Defendant at a disadvantage and I respectfully request that the court considers using its powers under Civil Procedure Rules 31.21. In the alternative I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

19: In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

20: It is denied that the Claimant is entitled to the relief as claimed or at all.


Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

Signed: XXXXXXXXXX

Dated: 10th February 2017

[sytra]

In the witness statement of Hannah Rainbow on behalf of Capquest / Arrow Global she has signed the statement with some incorrect information.

1: She says the account was opened with shop direct financial services for an ISME account.
The account was a Marshall Ward account.

2: The statement in the exhibit says it is a VERY account.
This was never a very account.

3: There is a typo error on a date in the witness statement, it is typed 07/12/2012
It should be 07/12/2017

4: The recon agreement was signed by Caroline Donnelly on 23/4/07
The earliest I record of Caroline Donnelly I can find with Shop Direct is in Sep 07, 5 months after she allegedlly signed the agreement.

5: The default is addressed by Shop Direct Finance Company Ltd
The agreement sent is Shop Direct Financial Services

There may be more but I have only just got back to have a look through it.


Regarding the response from Shop Direct to my SAR.
In the financial accounts it mentions LX Direct only for interest, LX Direct was not part of Marshall Ward or ISME and had a lower rate of interest.

[sytra]

Re reading all the paperwork I have, Capquest and Shop Direct have both sent a credit agreement for Shop Direct Financial Services Ltd (SDFS), the assignment notice says SDFS, the witness statement from Capquest says SDFS.

The Default notice is from ISME and Shop Direct Finance Company Ltd, a completely different company to SDFS.

If the only agreement provided and assignment notice state SDFS would that then make the Default null being issued by a seperate company? I realise that there should probably be an amended agreement from when Marshall Ward and SDFS became ISME and SDFC however that has not been provided by Capquest or Restons in the past.

On the statement Capquest have provided it says it is a VERY account, this account was never VERY and my wife is not 100% sure it ever became ISME although in all probability it did

[sytra]

Just reading back, the DN does give 14 days IF it was sent 1st class ( as it's dated 3rd and deadline is 17th - so there are 15 days but you wouldn't have received it until earliest 4th )

I am not questioning this at all as you will have far more knowledge than me, but all I can find regarding deemed service is the 2nd business day AFTER posting which makes it the 5th at the earliest (Moneyclaims UK have a deemed service page).

Should be falling off your credit file soon in any case.

Yes, thats what we think has happened, we think they started the claim in time so we couldn't say it was SB, then a month before due to come off the credit file they do this to try and get a CCJ for another 6 years

[Amethyst]

The account was opened in 2007 with Marshall Ward trading name of Shop Direct Financial Services Limited. No company number on the initial agreement document but there is the OFT and FCA authorisation numbers of 312194 ( which is SDFS ) and 537906 ( which is also SDFS )

Marshall Ward changed their name to ISME as you've noted in your first post

The "contract" was with Marshall Ward and then in about 2009 changed to ISME

I think it was 2011 it changed to ISME but it was ISME at the time of the default in 2012. ISME then changed to/ merged with VERY in 2015. So any print out now ( do you have the black screenshot ? as a statement ) would be in VERYs name.

The terms at default ( 2012 ) with Shop Direct Finance Company Ltd has difference OFT & FCA numbers ( OFT 312190 FCA 535857 ) which are both SDFC.
The second agreement appears to be a VERY agreement from 2010 as VERY was SDFC and offered the Take3 - so it is incorrect. ( Very 'opened' in 2009 )

The Default Notice is from ISME trading name of Shop Direct Finance Company Ltd (companies house ref 4660974 ) - so when Marshall Ward changed to ISME, did it move from SDFS to SDFC ? Was it correctly assigned ? ( one would assume it was but it can still be raised as a question )

Soooo..... the 2007 recon agreement seems correct ( for a recon)
the terms from default are wrong ( as they are Very 2010 terms and Very & ISME weren't merged till 2015 )

The correct ones from ISME in 2012 state the order of payment application and default charges etc.

do you have a copy of those then?
The Default Notice would be right if the Marshall Ward to ISME change involved assignment to SDFC from SDFS.

So terms as varied are not provided and as a recon are not honest and accurate ( refer Carey v HSBC ) however that wouldn't make it unenforcable as the original agreement terms ( if they are correct ) would stand.

On the statements, you mentioned about the codes and interest rates for the LX Direct entries, is there any way of comparing the interest rates charged and those in the agreement up to 2010 and after 2010 and do they align with the agreements?

You also have the assignment issues

The SAR from SD says the account was assigned to Capquest on 12/11/2012.

Claim form says it was assigned on 21 Dec 2012

3, The SAR copy of assignment is dated 4th Jan 2013.

The original assignment is dated 28th Feb 2013

And if that as varied terms is argued to be correct there should also be assignment from SDFS to SDFC.

And the 14 days issue - but it is only 1 day out so could be deemed de minumus ( see Brandon v Amex )

So whether those are enough arguments to defend the case is the question.... it may be enough to show you do have a defence with a prospect of success to defend against the summary judgment application and proceed with the case, but I think to argue the technical aspects would require formal legal assistance ( Joanna Connelly or Paul Tilley are very good and may be able to assist ) ... however this is small claims, and 'only' £1900 - the costs of proceeding and being deemed unreasonable(and having full costs awarded against) plus risk of getting a CCJ ( unless you are in a position to pay any judgment off within 28 days ) probably outweigh getting an arrangement under a Tomlin order / or a F&F settlement sorted out of court.

Unless there are other issues of course. Of course you didn't receive that May letter which may have contained proper documents?

That's just my very amateur view on things as they stand for what it's worth anyway.

Yes, thats what we think has happened, we think they started the claim in time so we couldn't say it was SB, then a month before due to come off the credit file they do this to try and get a CCJ for another 6 years

Yip, shitty tactics.

[Amethyst]

Re Brandon - page 5 of this http://legalbeagles.info/wp-content/...tober-2011.pdf for reading.

[sytra]

The account was opened in 2007 with Marshall Ward trading name of Shop Direct Financial Services Limited. No company number on the initial agreement document but there is the OFT and FCA authorisation numbers of 312194 ( which is SDFS ) and 537906 ( which is also SDFS )

Marshall Ward changed their name to ISME as you've noted in your first post
I think it was 2011 it changed to ISME but it was ISME at the time of the default in 2012. ISME then changed to/ merged with VERY in 2015. So any print out now ( do you have the black screenshot ? as a statement ) would be in VERYs name.
That explains that bit then, however, I am not 100% sure it ever did become an ISME account now, going through the copy statement sent by Shop Direct every single copy says it is Marshall Ward upto 31/10/2012

The terms at default ( 2012 ) with Shop Direct Finance Company Ltd has difference OFT & FCA numbers ( OFT 312190 FCA 535857 ) which are both SDFC.
The second agreement appears to be a VERY agreement from 2010 as VERY was SDFC and offered the Take3 - so it is incorrect. ( Very 'opened' in 2009 )
This second agreement has not formed part of Capquest witness statement, they have not sent a second copy this was from SD themselves in 2013

The Default Notice is from ISME trading name of Shop Direct Finance Company Ltd (companies house ref 4660974 ) - so when Marshall Ward changed to ISME, did it move from SDFS to SDFC ? Was it correctly assigned ? ( one would assume it was but it can still be raised as a question )
My wife cannot recall receiving anything saying it was changing to ISME, There is nothing in her paperwork she has got and on the account history screenshot from SD there is no mention of changing to ISME (the only change is in 2016 when is says it changed to VERY, I assume so they could satisfy the SAR)

Soooo..... the 2007 recon agreement seems correct ( for a recon)
the terms from default are wrong ( as they are Very 2010 terms and Very & ISME weren't merged till 2015 )
Capquest have not sent any terms from the time of the default

do you have a copy of those then?
The Default Notice would be right if the Marshall Ward to ISME change involved assignment to SDFC from SDFS.
As mentioned there is no recollection of any change and nothing in paperwork confirms this

So terms as varied are not provided and as a recon are not honest and accurate ( refer Carey v HSBC ) however that wouldn't make it unenforcable as the original agreement terms ( if they are correct ) would stand.

On the statements, you mentioned about the codes and interest rates for the LX Direct entries, is there any way of comparing the interest rates charged and those in the agreement up to 2010 and after 2010 and do they align with the agreements?

You also have the assignment issues


And if that as varied terms is argued to be correct there should also be assignment from SDFS to SDFC.

And the 14 days issue - but it is only 1 day out so could be deemed de minumus ( see Brandon v Amex )


Unless there are other issues of course. Of course you didn't receive that May letter which may have contained proper documents?
I am still trying to find that letter, they claim it contained the agreement etc, however, as far as i can remember it didn't

Thank you for your help, I am still looking for the letter from May, it has been filed (safely)!!!

[sytra]

I have looked everywhere and cannot find the letter that was sent in May, all I do know is it didn't contain the info they claim as we would have remembered it.

[sytra]

Well, at least the courts didn't go for Summary Judgement, the Mrs got a letter from the court saying it has been transferd to our local court.

[sytra]

pt2537

[sytra]

As this claim was brought before the 6 year rule I understand the SB has been paused, however, IF we can get the case dismissed or struck out and the SB clock starts again then does it start from day one or where it left off?

The debt is due to become SB on 7th Nov 2018, so would this date still stand? So at the next hearing in Dec, if the Mrs flutters her eyes at the judge and we can convince the him or her to dismiss it then in effect the wife would walk out of court and the debt would be SB?

[sytra]

pt2537 Amethyst
I hope you don't mind me tagging you

We have a few days left to send in the paperwork in response to the hearing for the lifting of the stay, and strike out.

I have been reading and see we have to pull their ws apart, do we also have a chance to include our own ws with the evidence we would have shown at trial or is that held off for another time. I just want to try and get it all dealt with at the same time if possible.

[sytra]

Can anyone advise me on the legalities of not advising the courts of a change of solicitor.

We received an n434 from the claimant saying that Restons were no longer acting on their behalf and they were now a rep themselves. Just sending the papers off and noticed we had 3 address for the claimant so called the court to see which one to send to and they said they had no notification of a change of solicitor and that Restons are still listed as acting so use Restons address.

If they have not informed the court of a change then does that blow the witness statement of their new representative out of the water? Papers have gone off now but just wondered how we go about it in court next week?

[MIKE770]

just an administrative practice change of solicitor and informing you, you need take no action unless contacted by the new one

[MIKE770]

Amethyst